Wednesday, August 2, 2017

As I mentioned a few days ago, the Supreme Court will be addressing the issue it was supposed to decide but didn't in Kiobel v. Royal Dutch Petroleum : whether corporations can be held liable under the ATS in a case called Jesner v. Arab Bank. [For background history and the discussion surrounding Kiobel, go here, and scroll down. There are two or three pages of posts, dating back to 2010.]

In anticipation of the decision in Jesner, which will be argued before the Court on October 11, the SCotUS blog has published two short articles on the issue presented by the case. Both are written by people who also authored amicus briefs in the case.

The first one, available here, is written by the lawyer who represents the Chamber of Commerce. Not surprisingly argues that the Court should rule for the defendants and hold the ATS bars claims against corporations. It concludes that

ATS suits against corporations, in short, not only flout clearly enacted
congressional policy, but also carry heightened risks of the very
foreign-policy and other practical consequences that the Supreme Court
has warned federal courts to avoid in fashioning federal common law and
that the ATS itself was enacted to prevent. The Supreme Court should
hold in Jesner that the federal-common-law cause of action
authorized by the ATS does not extend to suits against corporations to
enforce modern human-rights norms.

The second article, available here, is written by the lawyer for financial regulation scholars and former government officials who filed a brief in support of the plaintiffs, argues that the Court should hold that the statute does not ban claims against banks. It concludes that

...Allowing
liability for banks would be consistent with the broader policy goal of
ensuring a safe and terrorist-financing-free financial system.
Considering the importance of anti-terrorist financing and anti-money
laundering to the stability and integrity of the U.S. financial system,
banks should be held liable under the ATS for knowing and willful
activity allowing terrorist groups access to U.S. dollar clearing.
Indeed, creating a loophole for dollar clearing of terrorist financing
would be exactly contrary to U.S. anti-terrorism policy. Establishing a
hostile environment for terrorist financing is a longstanding and
fundamental policy goal of the United States, and using private suits to
find banks liable for knowing and willful illicit clearing will
directly promote that goal.

Both articles have links to the amicus briefs, and all the documents in the case, as well as links to the articles and updates are available here.